Jubelirer v. Rendell, __ A.2d __ (Pa. 8/19/2008), per Castille, C.J., seems to confirm that the Edmunds four-factor analysis will only be used in State constitutional analysis of provisions parallel to those found in the United States Constitution.  On the merits of the case the Court held that Art. IV, section 16 does not permit the Governor to veto language defining a specific appropriation unless the Governor vetoes the funding itself.  [Thanks to Donald Marritz for the heads up.]  Some of the language concerning Edmunds follows:

"[W]e have been precise in ex plaining that it is when a matter calls for this kind of comparative constitutional analysis that  we turn to the four Edmunds factors for guidance.....In contrast, this Court is sometimes presented with cases requiring us to interpret a provision of the Pennsylvania Constitution that lacks a counterpart in the U.S. Constitution. In such cases, because there is no federal constitutional text or federal caselaw to consider, we have not engaged in the four-factor analysis set forth in Edmunds."

The 6/23/2008 press release by The Administrative Office of Pennsylvania Courts announcing a State Supreme Court order revising procedures for requesting and accessing State courts financial records tried to avoid the issue of separation of power to regulate in this field.  The press release called the changes "consistent" with recent changes in the State Right to Know Law, but also maintained that the changes were consistent with the "supervisory and administrative authority of the Supreme Court."  Thus the press release avoids the State constitutional question of legislative authority to regulate the State courts.                

Recent Pennsylvania caselaw shows a narrowing and weakening of the analytical framework for interpretation of the Pennsylvania Constitution articulated in Commonwealth v. Edmunds, (Pa. 1991) and more or less followed since then in Pennsylvania Supreme Court opinions.  For one thing, the Court itself recently limited the scope of one of the four factors, the policy prong, to uniquely Pennsylvania considerations, which had not been the focus in Edmunds itself.  See discussion in Commentary, infra, of Commonwealth v. Russo.  Now, a Superior Court panel has resurrected the methodology of Commonwealth v. Gray (Pa. 1985), which required a "compelling reason" to expand a federal right under the Pennsylvania Constitution.  See Commonwealth v. Grahame (Pa.Super 2008) in rejecting a claim of right under Art. I, section 8.  While the Pennsylvania Supreme Court has not followed this methodology of compelling reasons since Edmunds was decided, the Court has never expressly stated that Gray's method is no longer the controlling precedent.  In fact, Edmunds cited Gray without mentioning its obvious tension with it.  Even though the Supreme Court is limiting Edmunds, it has shown no signs of returning to Gray and the Court should take a look at Superior Court's apparent error in this regard.      

In a little noted order, on March 17, 2008, the Pennsylvania Supreme Court amended the Canon 7 of the Code of Judicial Conduct to remove language prohibiting judicial candidates from "appear[ing] to commit" themselves on issues and cases likely to come before the court they are trying to be elected to.  Undoubtedly this change was induced by a federal court decision on October 16, 2007 that interpreted the Canon narrowly to avoid first amendment issues.  See Pennsylvania Family Institute, Inc. v. Celluci [Caselaw: Art. V, section 18].

The amendment of the Canon is worrisome, however, because it was done without prior distribution and without public comment.  It seems to have been done without any input outside the court at all.  These Canons have the force and effect of law.  Law should not be made in secret in a democracy.  This is especially galling because there is obviously no need to rush to amend a provision that usually applies only during election campaigns.  Someone should remind the Justices that they are not monarchs.   

The statement attributed to Chief Justice Ronald Castille on 4/19/2008 (see News) that if the Pennsylvania Senate confirms Robert Daniels for Superior Court, the Supreme Court could waive the mandatory retirement rule for him when he turns 70 in the middle of the proposed appointive term, demonstrates the oddity of the Court's understanding that it can appoint senior judges to courts with set numbers of judges that decide cases en banc, such as Commonwealth, Superior and indeed the Supreme Court itself.  The Supreme Court asserted this power with regard its "senior appointment" to the Pennsylvania Supreme Court of Frank Montemuro.  See Commonwealth v. Wetton, 648 A.2d 524 (Pa. 1994).  This asserted power nullifies the Senate's two-third's confirmation vote prerogative in Art. V, section 13(b).  In principle, if the Senate refuses to confirm Daniels, the Court can put him on Superior Court by its action as soon as he turns 70.  Surely, that cannot be right.

The Mississippi Law Journal has just published a symposium entitled "Independent State Grounds: Should State Courts Depart from the Fourth Amendment in Construing Their Own Constitutions, and if so, on What Basis Beyond Simple Disagreement with the United States Supreme Court's Result?"  (77 Miss. L. J. 1 (2007))  This question echoes the effort by Pennsylvania Chief Justice Ronald Castille and Justice Thomas Saylor to place Pennsylvania constitutional jurisprudence on a more secure state-oriented basis.  In his majority opinion in Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), Chief Justice Castille, citing a law review article by Justice Saylor, stated that Pennsylvania should not depart from federal interpretations of parallel constitutional provisions unless there are specific reasons in Pennsylvania history and experience that would justify a different conclusion from that of the United States Supreme Court.

Two issues arise out of this effort.  One is whether the question should be thought as "departing" from federal interpretation or simply, as one of the Symposium authors put it, of interpreting a State's own constitution?  If two courts interpreting similar language differ in their outcomes, who is to say which court "departed" from which?

But the deeper issue is this notion of "simple disagreement".  When the United States Supreme Court decided, in United States v. Miller (1976), that depositors lack a reasonable expectation of privacy in their bank records, the decision, though controversial, was understandable.  Many persons in the bank have access to these financial records.  Nevertheless, many observers disagreed with the decision on the ground that we ought to be able to keep such intimate financial matters away from government eyes unless there is probable cause and perhaps a warrant.  The Pennsylvania Supreme Court so held in Commonwealth v. DeJohn (1979) and it was not the only State Supreme Court to so conclude.

This example shows that reasonable people can disagree with a judgment such as the one about bank records.  It is, in the words of the Symposium, a simple disagreement. This instance shows why such a disagreement must be considered a legitimate ground for State judicial decision.  After all, the task of State judges is to protect legitimate privacy.  If State judges conclude that the United Supreme Court has failed in that task, how can they faithfully do anything other than to "depart" from what is, in their best judgment, an error?  No special State history or experience should be necessary to justify that action.

Justice Baer's discussion of Pennsylvania preemption law in Nutter v. Dougherty brought welcome clarity to this field, despite disagreement on the Court concerning the application of these principles to the case at hand.  But the decision to uphold Philadelphia campaign contribution limits did not address the first amendment issues involved.  Recent decisions by the United States Supreme Court suggest that it is difficult to write constitutional contribution and spending limits of the Philadelphia type.  In other words, the victory won by campaign finance reformers in Philadelphia may prove fleeting.  

Justice Castille's majority opinion in Commonwealth v. Russo (see caselaw), which followed the federal open fields doctrine in Art. I, Section 8 analysis, may have changed the way state constitutional "Edmunds" analysis is done, thus changing the way the Pennsylvania Constitution is interpreted in the future.  The Edmunds four factor analysis--text, history, other states and policy--replaced a tendency in such cases as Commonwealth v. Gray (1985), to follow federal constitutional rulings in the absence of some Pennsylvania-specific reason to the contrary.

Commonwealth v. Edmunds (1991) did not apply any such presumption that Pennsylvania would follow federal law. One could say that under Edmunds, the state courts would simply adopt the most persuasive constitutional rule, given text history other states' treatment of the issue.

In Russo, Justice Castille, citing a law review article by Justice Saylor, stated that the policy prong of the Edmunds analysis does not allow a court to reevaluate a federal rule ab initio--because that would allow subjective value judgments by judges--but asks instead whether there is evidence of unique Pennsylvania treatment of the issue at hand.  Justice Castille's approach reintroduces, in effect, the federal presumption that Justices Hutchinson and McDermott had favored years ago.

In addition to that overall change in emphasis, Justice Castille's opinion also narrowed the search for Pennsylvania historical distinctiveness in search cases by pointing out that Pennsylvania did not have an exclusionary rule until forced to do so by Mapp v. Ohio.  Thus, protection of privacy in Pennsylvania prior to Mapp is irrelevant to constitutional analysis since privacy was never protected by exclusion of evidence in a criminal case.

Based on the majority approach in Russo, Pennsylvania search and seizure law is unlikely to break any new ground in the near future.  Russo may also mean that for Pennsylvania constitutional law generally.

On August 17, 2007, the Pennsylvania Supreme Court issued a Per Curiam order suspending Superior Court Judge Michael Joyce with pay "until further order of this Court" in light of an indictment against him in federal court.  The order is reminiscent of the order suspending Supreme Court Justice Rolf Larsen in 1993 upon a presentment against him by a State Grand Jury.  The order raises two questions.  First, since Judge Joyce is running for retention, does the suspension technically remove him from the ballot?  The answer appears to be no.  Nothing in the order refers to the retention election and such a serious result could not be implied.  [Since this entry was written, Judge Joyce has announced that he is withdrawing his name from the retention election and will retire at the end of his current term.]

The second question is why the State Supreme Court thinks it still has this suspension power.  By constitutional amendment in 1993, the people of Pennsylvania created a new judicial discipline system.  Part of that system is a quasi-independent Court of Judicial Discipline, which was given the authority to issue an interim order suspending a judge "against whom has been filed an indictment."  Art. V, section 18(d)(2).  Clearly, the Court of Judicial Discipline could have done what the Supreme Court did with regard to Judge Joyce.  But the power to suspend must also include the power not to suspend.  The language in the Constitution is that "the court may issue an interim order... ."  It is not mandatory.  There is no reason to think the people of Pennsylvania meant this new power to be shared, especially since the 1993 amendment was widely regarded as an attempt to lessen the power of the Pennsylvania Supreme Court over judicial discipline.

In the Joyce order, the Supreme Court referred to recent cases that cited its King's Bench Power prior to 1968 and its judicial supervisory authority under Art. V, section 10(a).  Whatever the merits of such claims of authority before 1993, there is no justification for assuming such authority once the people of Pennsylvania acted.  The grant of constitutional authority to the Court of Judicial Discipline should be regarded as exclusive.

The decision of the Federal District Court in Small v. City of  Philadelphia (see caselaw) to dismiss a cause of action for damages for violations of the Pennsylvania Constitution demonstrates that the Pennsylvania Supreme Court must clarify the remedial issues surrounding alleged constitutional violations.  The Federal Court dismissed on the authority of Jones v. Commonwealth, 890 A.2d 1188 (Pa.Commw.Ct. 2006).  It is not appropriate for such an issue to be resolved by an intermediate court.  This is especially so now that it appears the federal courts may treat the Jones case as definitive.  The Pennsylvania Supreme Court should have accepted review in Jones rather than denying the petition for allowance of appeal, without opinion.  See Jones v. City of Philadelphia, 909 A.2d 1291 (Pa. 2006) (TABLE, NO. 95 EAL 2006).

In Downingtown Area School District v. Chister County Board of Assessment Appeals (see caselaw, Art. VIII, Section 1), the majority attempted to clarify the relationship between tax uniformity under the State Constitution and federal equal protection under the Fourteenth Amendment.  Unfortunately, the Court is still misinterpreting equal protection as far more restrictive of State discretion than in fact it is.  The majority did acknowledge in footnote 9 that, despite language in prior State opinions that uniformity and equal protection are coterminous, the United States Constitution does not require the level of equalization that uniformity does.  Nevertheless, the majority mistakenly described Allegheny Pittsburgh Coal Co. v. County Com'n (1989) as proscribing systematic discrimination in taxation.  In fact, the Allegheny case simply held that if a State has a uniformity provision and makes no effort to equalize tax burdens, such a failure violates equal protection.  Three years later, in Nordingler v Hahn (1992), the United States Supreme Court upheld under equal protection a California tax system that assessed some properties at their sale price, which yielded "dramatic disparities in taxation of properties of comparable value" because there was a "plausible policy reason for the classification".  The Court in Nordingler even called the Allegheny case a "rare case".  It is fair to say the federal equal protection has nothing whatever to do with uniformity analysis and that every option proposed in the Downingtown case would have satisfied the federal standard. 

The composition of the 4-2 decision in In the Matter of Condemnation by Urban Redevelopment Authority of Pittsburgh, 2006 WL 3800448, __ A.2d __ (Pa. 12/27/2006), see Caselaw, Art. I, Section 7, is significant because Justice Saylor joined in dissent with Justice Castille in seeking to apply a very stringent level of protection of expression under the Pennsylvania Constitution.  Since the 2007 election cycle will add two new Justices to the Court, the votes of those two Justices will probably determine the future level of protection of expression under Article I, Section 7. 

There has been a great deal of attention to the "signing statements" issued by President Bush indicating disapproval of aspects of federal statutes that he nevertheless is signing.  Pennsylvania does not have an established practice of such signing statements, but Governor Rendell issued the following signing message on November 22, 2006, in reference to his approval of SB 1166, which provided for the capital budget for fiscal year 2006-2007:

TO THE HONORABLE, THE SENATE OF PENNSYLVANIA I have this day approved and signed Senate Bill 1166. However, the Bill as sent to me includes a number of substantive items containing language which I believe conflicts with provisions of the Pennsylvania Constitution and Pennsylvania law and places undue and unlawful restrictions upon the authority of the Governor. I believe that this language is thus null and void without further action. Section 13 is an example of one of these provisions. Although some of the suggestions offered in the Bill may be acceptable as a matter of policy and may, in fact, be implemented, their inclusion in the Bill has no legal effect. I do not intend, however, to implement the provisions of Section 13.

It is amazing that in 2006, the Pennsylvania Supreme Court has still not resolved, or even really addressed, the issue of the availability of monetary damages for violations of the Pennsylvania Constitution.  Chief District Judge Kane of the Middle District of Pennsylvania accepted supplemental jurisdiction of such a claim in MFS, Inc. v. Township of South Annville (see caselaw) on November 9, 2006, but noted that the matter still remains unresolved and, perhaps pointedly, noted in a footnote that the State Supreme Court, without opinion, had recently  denied a petition for allowance of appeal in Jones v. Philadelphia, in which the lower court and the Commonwealth Court had considered the damage issue extensively.  Of course, the damage issue is not simple, since it requires considerations of state action, immunity, substantive constitutional theory and matters of policy.  Nevertheless, the damage issue is central to the rule of law, however the issue is ultimately resolved.  The unwillingness to address this issue underlines the fundamental failure of Pennsylvania constitutional jurisprudence to achieve a coherent body of law, a fault that lies particularly at the doorstep of the Pennsylvania Supreme Court.

The refusal of the Pennsylvania Supreme Court on November 8, 2006 to grant reargument in the pay raise case, Stilp v. Commonwealth (see News) means the end of that case.  What was left uncertain is the effect of the repeal of the pay raise statute on future judicial salary increases in Pennsylvania.  Reported statements by Justice Castille suggest that he believes the opinion reinstates all pay raise provisions for judges, including the tie between Pennsylvania judicial salaries and federal judicial salaries for future increases in salary.  This issue was raised again this week when it was reported that Pennsylvania judges would receive a State cost-of-living adjustment in January, 2007.  There was no mention in the reports as to the effect of the pay raise statute on State, as opposed to federal, cost-of-living changes.    

According to one media question directed to this website, the Adminstrative Office of Pennsylvania Courts is relying on a pair of 1989 cases in refusing to authorize a lower salary payment to Judge Orie Melvin reflecting her request to refuse the judicial pay raise upheld in Stilp v. Commonwealth.  See News.  This reasoning does not seem to have yet been reported as the AOPC's rationale.  The cases, Goodheart v. Casey, 555 A.2d 1210 (1989) and Klein v. Commonwealth, 555 A.2d 1216 (1989) struck down the effort by the legislature in 1974 and 1983 to reduce benefits and increase contributions to judicial pensions for judges entering office after 1974, thus creating a two-tier judicial compensation system for the foreseeable future.  Neither case produced a majority opinion, being decided by a three-Justice plurality with 3 Justices concurring in the result.  Justice McDermott dissented in each case.  Reargument was granted in each case based on the conflict of interest of certain Justices and the cases were reaffirmed in Goodheart v. Casey, 565 A.2d 757 (1989).  Presumably, the AOPC regards the cases as establishing that two tier compensation structures for judges on the same court are unconstitutional.  The importance of the cases lies not so much in the effect on Judge Orie Melvin, for even if the legislature could not do this an individual judge might arguably be able to waive this right, but in their potential effect on any legislative effort to role back the judicial pay raise by resetting judicial salaries when terms of office end.  See e.g., Bruce Ledewitz, Judicial Salary Ruling Creates More Confusion The Patriot-News, October 1, 2006.  Such an effort would also create two-tiered judicial compensation for a time and the Court might strike down such a legislative initiative.  It is important to note that these cases would not, by any interpretation, prevent the legislature from repealing the formula linking Pennsylvania judicial salaries to future federal judicial pay raises.

As the fallout from the pay raise case--Stilp v. Commonwealth--continues to settle, the effect of the decision on future judicial pay raises has come into question.  As reported on the website (see News), the media reported that the decision reinstated both immediate judicial salaries and the method by which the pay raise statute computed judicial salaries, tying them to federal judicial salaries.  If so, this would mean that any future federal judicial salary increase would automatically raise Pennsylvania judicial salaries as well.  But Justice Castille's  opinion actually left that question open.  The problem is that the repeal of the pay raise for judges was unconstitutional because of the operation of Art. V, section 16(a), which prohibits "diminish[ing]" judicial "compensation".  Once the pay raise passed, the effect of the new formula was an immediate increase in judicial salaries, which could not then be reduced.  But a formula is not "compensation" but only a way to compute compensation.  Therefore, as long as the effect of any change in the formula is not to immediately reduce judicial salaries, the legislature would arguably be free to change the formula at any time.  The repeal bill did exactly that when it repealed the entire pay raise.  Therefore, the tie between Pennsylvania judicial salaries and federal judicial salaries may already have been repealed and yesterday's decision does not necessarily reinstate it for the future.            

What is disappointing about the pay raise decision (Stip v. Commonwealth, see News) is not any particular portion of the decision, nor its reasoning per se, but the refusal of the Justices to understand the need to reassure the public that judges do not decide cases out of their own self-interest.  If the Justices had struck down the entire pay raise on the ground that the statute's nonseverability clause compelled that result, the people of Pennsylvania, seeing public officials acting against their own financial interests, would have said, "at least we can trust the courts."  Now with a decision that upholds the pay raise for judges only, the cynicism of the public toward their government is greatly deepened.  That cynicism is corrosive of democracy.  Since Justice Castillo admitted in the opinion that there was "no controlling authority" on the nonseverability issue, someone should have reminded him of the appearance of impropriety that comes from breaking new ground when the Court's own financial interests are at stake. 

The potential results of the pay raise cases argued in the Pennsylvania Supreme Court on 4/4/2006 can be divided into three basic possibilities: the original pay raise was unconstitutional; the pay raise was constitutional and the repeal was constitutional; the pay raise was constitutional and the repeal was unconstitutional.  In the first outcome, it is as if no pay raise ever happened.  Judges receive no pay raise and legislators do not receive an impact on their pensions from the short existence of the legislative pay raise.  In the second outcome, the repeal effectively ends the pay raise for all officials, including judges but limited effects, like pension increases and the legality of receiving the pay raise for a short time remain.  In the third outcome, judges would retain their pay raise into the future and would receive retroactively the additional salary they have lost since the repeal.  In this third possibility, if the repeal is found unconstitutional as to judges, the Justices could find the repeal non-severable, and reinstate the pay raise for all officials.  That seems unlikely to happen.  Even if the original pay raise is found unconstitutional, it is unlikely that legislators can be forced to repay any money received because of legislative immunity.

It has been widely reported in the media that the Alliance Defense Fund, an Arizona based Christian advocacy group, has filed suit in federal district court in Pittsburgh on behalf of protestors challenging the City's abortion clinic protest statute.  According to a spokesperson at Alliance Defense Fund, the suit raises not only first amendment issues, but also free speech under the Pennsylvania Constitution, Article I, section 7.  The State constitutional claim is significant because the statute was clearly tailored to survive a first amendment challenge, but there is no corresponding precedent in this field under Article I, section 7.  Of course, for just that reason a federal judge may decide not to hear the State constitutional issue pursuant to discretionary supplemental jurisdiction.

At the Judiciary Committee hearings that ultimately led to the confirmation of Judge Cynthia Baldwin to the Pennsylvania Supreme Court, State Senator Jeffrey Piccola raised an issue concerning Judge Baldwin's role as Chair of the Penn State Board of Trustees.  Piccola argued that this role, and the role of Chief Justice Ralph Cappy as Chair of the University of Pittburgh Board of Trustees, raise issues under Cannon 5 of the Code of Judicial Conduct.  Cannon 5B generally permits a Judge to serve as trustee of an educational organization, with the limitation that "Judges should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before them or will be regularly engaged in adversary proceedings in any court."   Because of the hierarchical nature of the Pennsylvania Judicial system, any case filed anywhere in that system is potentially before the State Supreme Court.  Therefore, the question for evaluating the compliance of Justice Baldwin and Chief Justice Cappy with Cannon 5 is whether litigation involving Penn State and the University of Pittsburgh "would regularly" be filed in the State courts.  This is not very different from the other portion of the standard, prohibiting trusteeship in an institution that regularly engages in lawsuits in any court.  Both these universities are extremely large institutions and no doubt are involved in lawsuits from time to time.  Is that sufficient to support Senator Piccola's objection?  Canon  5 contains a note that sheds light on this question.  The note requires judges to reexamine their relationships to organizations in light of changing circumstances and then illustrates the point: "For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past."  This example is significant because no charitable hospital in the United States is likely to be in court as often as either Penn State or the University of Pittsburgh, both of which have hospital components as well as other operational aspects that could generate litigation.  All of this suggests that Senator Piccola's objection was not frivolous and may come back to embarrass the court at some time in the future.

In several recent cases in the Eastern District of Pennsylvania, some of which are noted in the methodology section of caselaw herein, claims for damages for State constitutional violations have been dismissed in opinions noting that the Pennsylvania Supreme Court has not yet definitively determined the proper scope of such claims, if any, and their relation to governmental immunity at the State and local levels.  The trend now seems clear that the federal courts will not recognize such claims unless the Pennsylvania Supreme Court so states.  It is surprising that this issue has not been decided before now, but the Supreme Court seems obligated now to address it.  The court could begin with review in a case like Stackhouse v. Commonwealth, __ A.2d __, 2005 WL 3740572 (Pa. Cmwlth. 2/8/2006), in which the panel, per Judge Leadbetter, distinguished between claims for damages and for affirmative injunctive relief, which were held barred by sovereign immunity, 1 Pa.C.S. (§)2310, and claims seeking to restrain state officials from affirmative acts, which were not.  The court did not appear to distinguish actions to enforce State constitutional rights from any other kind of claim.

The public is largely unacquainted with the circumstances that led to the dismissal by Judge James R. Kelley of the Commonwealth Court of a lawsuit challenging the legislative pay raise and the possible connection of that dismissal to a pension increase granted to Judge Kelley by a strangely constituted en banc panel headed by President Judge James Gardner Colins, the same Judge Colins who appointed Judge Kelley to decide the pay raise case. Although the pay raise challenge has been, in effect, reinstated by the State Supreme Court, these disturbing circumstances bear noting.

On August 1, 2005, Gene Stilp filed a lawsuit in Commonwealth Court challenging the constitutionality of the pay raise statute that the legislature had passed on July 7, 2005. On October 7, 2005, President Judge Colins assigned the case to Senior Judge Kelley. Preliminary objections to the complaint were filed by the Commonwealth defendants, but before briefs were filed, the legislature, under public pressure, repealed the pay raise.

At the time of the repeal, there were numerous reports in the media that some number of judges intended to file lawsuits challenging the repeal as to judicial salaries on the ground that any reduction of a judicial salary violates Article V, section 16(a) of the Pennsylvania Constitution. That section provides in part that judicial "compensation shall not be diminished… ."

The repeal of the pay raise was signed by Governor Rendell on November 16, 2005. The next day, November 17, Judge Kelley, sua sponte, entered an order to the parties to brief the issue of the potential mootness of the case in light of the repeal. The order gave the parties 10 days-until November 28-to file briefs on the mootness issue. On November 30, 2005, in an unpublished opinion, Judge Kelley dismissed the lawsuit as moot. A little over a week later, on December 5 and 6, lawsuits were filed by judges challenging the repeal of the judicial pay raise as unconstitutional.

The significance of the timing of the judicial lawsuits lies in the validity or invalidity of the original pay raise. If the original pay raise statute was constitutional, the repeal was probably unconstitutional as to judges. But if the original pay raise was unconstitutional, as Stilp's lawsuit argued, then the repeal was irrelevant. In that case, the judges never received a valid salary increase and, so, withdrawing that increase is not unconstitutional. In other words, without the Stilp lawsuit, the judges might very well win their challenge and get their pay raise.

Because of the likelihood of the judicial challenge to the repeal, Stilp's case was not moot, at least not once judges actually filed suit. Judge Kelley had to have known that these judicial lawsuits were imminent. For him to pursue mootness so vigorously, therefore, looks like an effort to clear the way for an unimpeded judicial challenge to the repeal. This impression was strongly reinforced when judges quickly filed suit once the Stilp case was out of the way.

In the end, the State Supreme Court revived the Stilp lawsuit by granting special jurisdiction to hear it, along with one judicial challenge to the repeal. Those cases are still pending. Of course, Judge Kelley did not know when he dismissed the Stilp case that the State Supreme Court would take the case. (The State Supreme Court has reserved the issue of mootness.).

The focus now shifts to a petition for review filed by Judge Kelley in Commonwealth Court during the Spring of 2005. Judge Kelley argued in this lawsuit that a state statute limiting his, and other judges', pension benefits violated equal protection under both the federal and state constitutions. On January 24, 2006, the Commonwealth Court ruled in his favor, 3-2, in an opinion authored by Judge Friedman and joined by Judge McGinley and President Judge Colins, over the dissents of Judges Pellegrini and Leadbetter.

The decision for Judge Kelley was surprising both substantively and procedurally. Substantively, the majority held that the statutory limit on judicial pensions violated the "rational basis test", which is the lowest form of equal protection review. Under rational basis, the United States Supreme Court has allowed more or less arbitrary line drawing of pension benefits in a situation in which not everyone could receive higher benefits-see, for example, United State R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980). As Judge Pellegrini's dissent states, it is rational to exclude judges from increased pension benefits because they already receive benefits at a higher rate than the average state worker. (Legislators were also excluded from the higher pension benefits).

Procedurally, the closely divided court in the Kelley case was comprised of only five judges. The internal operating procedures of Commonwealth Court require either a panel of three or an en banc court of seven. The opinion includes a notation that "Judges Smith-Ribner, Simpson and Leavitt did not participate in the decision in the case" but does not say that they were part of the en banc court, which they could not have been, since that would have been eight judges. The internal rules also provide that "[t]he president judge shall structure the judicial membership of en banc courts…" so Judge Colins may have had discretion to seat judges in this case. On the other hand, panels of five judges in Commonwealth Court are sometimes used despite the rule when full panels are difficult or impossible to obtain. That may have been the case here. It may have been felt that no Senior Judge could decide a case about judicial pensions and several of the remaining judges may have been too personally close to Judge Kelley to participate. But, no explanation for the strange number of judges was given.

The outcome in the Kelley case is unfortunate in its potential effects on Pennsylvania pension benefits. The decision is also poorly reasoned. Certainly the decision should be appealed by the Retirement Board. Do the circumstances of the case, however, suggest anything beyond a singular, bad decision?

At the least, the dismissal of the pay raise challenge and its timing, together with the highly questionable grant of increased pension benefits to Judge Kelley, and the close involvement of President Judge Colins in each instance, creates a powerful appearance of impropriety. It is impossible to say, without outside investigation, whether the matter is even more serious than that.

The decision by the Judicial Conduct Board to dismiss the judicial conduct complaint against Chief Justice Ralph Cappy was not explained by the Board.  Presumably the Board felt that private meetings between Chief Justice Cappy and members of the Legislative and Executive Branches concerning pay raises for all three branches of government did not violate Canon 4B of the Code of Judicial Conduct.  The Code provision reads as follows:

He [a Judge] may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and he may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice.

Since the meetings in question were not "public", the first part of the provision does not apply.  The second part--"consult"--plainly permits private meetings, but "only on matters concerning the administration of justice".  Pay raises for judges probably fits that category--indeed may be precisely the subject the drafters wanted to allow private discussion about.  However, the link of a judicial pay increase to pay raises for the other two branches of government does not necessarily fit the category of "administration of justice."   That link is particularly problematic because legislative pay increases have in the past raised legal challenges and the Chief Justice's involvement might suggest judicial support for the bill that emerged.  It was that very problem that led Chief Justice Cappy to recuse himself from sitting in the pending case challenging the pay raise bill.